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Exhibit 10.8
EXECUTIVE OFFICER AGREEMENT
AGREEMENT ("Agreement") made this 18th of June, 1998, between
Tropicana Products, Inc. (the "Company") and Xxxxxxx X. Xxxx (the "Executive").
Executive is the Senior Vice President General Counsel of the
Company and has important management responsibilities and talents which benefit
the Company. The Company believes that its best interests will be served if
Executive is encouraged to remain with the Company. The Company has determined
that Executive's ability to perform Executive's responsibilities and utilize
Executive's talents for the benefit of the Company, and the Company's ability to
retain Executive as an employee, will be significantly enhanced if Executive is
provided with an employment agreement and with fair and reasonable protection
from the risks of termination under certain circumstances. Accordingly, the
Company and Executive agree as follows:
1. Defined Terms.
Unless otherwise indicated, capitalized terms used in this Agreement
shall have the meanings set forth in Schedule A.
2. Effective Date; Term of Agreement.
This Agreement shall be effective as of the date first set forth
above (the "Effective Date") and shall remain in effect for three years.
3. Compensation and Benefits of Executive.
Subject to any increases authorized by the Board, Executive shall be
entitled to the following during the Term of this Agreement:
(a) A Base Salary of $219,453, which may be increased at the
discretion of the Board;
(b) An Annual Target Bonus opportunity of $76,500; and
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(c) Participation in all other plans generally available to
executives of the Company (including, but not limited to,
retirement plans, welfare benefit plans, stock incentive
plans, deferred compensation plans, vacation, annual
transportation allowance and other perquisites) on a basis no
less favorable than is generally afforded to other executives.
4. Severance Benefits.
If Executive's employment with the Company is terminated at any time
during the Term by the Company without Cause or by Executive due to Good Reason
(the effective date of either such termination hereafter referred to as the
"Termination Date"), and provided that the Executive is and remains in full
compliance with his obligations in Section 9 hereof, then Executive shall be
entitled to the benefits provided in this Section 4.
(a) Salary and Bonus. A cash payment equal to two times the sum of:
(i) Executive's Base Salary; and
(ii) Executive's Annual Target Bonus.
payable monthly over 24 months, beginning with the calendar month following the
Termination Date.
(b) Pro-Rata Annual Target Bonus. Within a reasonable time after the
Termination Date, the Company shall pay Executive a lump sum amount, in cash,
equal to Executive's Annual Target Bonus, multiplied by a fraction, the
numerator of which shall equal the number of days Executive was employed by the
Company in the calendar year in which the Termination Date occurs and the
denominator of which shall equal 365.
(c) Deferred Compensation Plan Payment. The Company shall pay
Executive all amounts previously deferred under the Company's deferred
compensation plan (or any successor plan(s)) but not yet paid, in such form as
elected by Executive under such plan(s).
(d) Continued Welfare Benefits. For two years following the
Termination Date, the Company shall provide Executive with medical, dental, and
life insurance benefits at the level provided to its executives from time to
time ("Welfare Benefits"); provided, however, that if Executive becomes employed
by a new employer, Executive's coverage under the applicable Company plans shall
continue, but Executive's coverage thereunder shall be secondary to (i.e.,
reduced by) any benefits provided under like plans of such new
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employer; and, provided, further, that Executive shall continue to make all
employee premiums or contributions required to be made under the applicable
Company plans.
(e) Pension Plan. Upon Termination, Executive will be deemed 100%
vested in Executive's then accrued benefit in any Company defined benefit
pension plans, other than the Benefits Equalization Plan or any successor or
replacement plan thereto.
(f) Outplacement Counseling. For the one year period following the
Termination Date, the Company shall reimburse all reasonable expenses incurred
by Executive for professional outplacement services by qualified consultants
selected by Executive, up to 35% of Executive's Base Salary.
(g) Payment of Accrued But Unpaid Amounts. After the Termination
Date, the Company shall pay Executive earned but unpaid compensation, not
described above, including, without limitation, any unpaid portion of
Executive's annual Bonus accrued with respect to the full fiscal year ended
prior to the Termination Date, at the same time as it otherwise would have been
paid.
(h) The foregoing amounts in this Section 4 shall be reduced by any
amounts paid under the Company's Severance Pay Plan or any replacement plan.
5. Mitigation.
Executive shall not be required to mitigate damages or the amount of
any payment provided for under this Agreement by seeking other employment or
otherwise, and compensation earned from such employment or otherwise shall not
reduce the amounts otherwise payable under this Agreement. Except as expressly
set forth in Section 4(d) and 4(g) hereof, no amounts payable under this
Agreement shall be subject to reduction or offset in respect of any claims which
the Company (or any other person or entity) may have against Executive.
6. Parachute Limitation.
Notwithstanding anything herein to the contrary, if any amount or
distribution by the Company to or for the benefit of Executive (whether or not
paid or distributed pursuant to the terms of this Agreement or otherwise) would
subject Executive to an excise tax under Section 4999 of the Code (such excise
tax, together with any interest and penalties thereon, hereinafter referred to
as the "Excise Tax") on "excess parachute payments," as defined in Section 280G
of the Code, the amounts payable under Section 4 (and any other necessary
amounts) shall be reduced by the smallest amount necessary to avoid the
imposition of the Excise Tax.
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7. Termination for Cause.
Nothing in this Agreement shall be construed to prevent the Company
from terminating Executive's employment for Cause. If Executive is terminated
for Cause, the Company shall have no obligation to make any payments under this
Agreement, except for payments that are otherwise required to be paid under
then-existing employee benefit plans, programs and arrangements of the Company.
8. Indemnification.
Executive shall, after the Termination Date, retain all rights to
indemnification under applicable law or under the Company's certificate of
incorporation or by-laws, as they may be amended or restated from time to time,
as are available to other officers of the Company.
9. Executive's Covenants.
(a) Confidential Information. During and after the period of the
Executive's employment with the Company, Executive will regard and preserve as
confidential all Proprietary Information (as hereinafter defined) pertaining to
the business and affairs of the Company or any current or future affiliate
thereof that will be obtained by Executive in the course of his employment,
whether he has such information in his memory or in writing or in any other
physical form, except (x) while employed by the Company in the business of and
for the benefit of the Company, or (y) when required to do so by a court of
competent jurisdiction, by any governmental agency having supervisory authority
over the business of the Company, or by any administrative body or legislative
body (including a committee thereof) with authority to order Executive to
divulge, disclose or make accessible such Proprietary Information. Executive
shall not without the prior written consent of the Company otherwise divulge,
disclose or make accessible to any other person, firm, partnership or
corporation or other entity, or use for his benefit or purposes, any Proprietary
Information concerning the business or affairs of the Company. This obligation
of confidentiality shall not extend, however, to information which:
(i) was known by Executive on a nonconfidential basis prior to
its receipt by Executive from the Company;
(ii) is now, or hereafter becomes, generally available to the
public through no fault of Executive; or
(iii) is rightfully provided to Executive without restriction
from a third party, which third party possessed such information
without restriction.
(b) For purposes of this Agreement, Proprietary Information shall
include any information relating to the business or the affairs of the Company
that has not previously
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been publicly released by duly authorized representatives of the Company and
shall include but not be limited to "insider" information about the Company that
might be important to a reasonable investor who is deciding whether to buy, sell
or hold securities, information encompassed in all drawings, designs, computer
programs, strategic business plans, raw materials standards and specifications,
product development materials, research, proposals, marketing or sales plans,
manufacturing processes, storage and distribution processes, customer buying
habits and histories, financial information, profit margins, costs, pricing
information, business contact information, customer information, employee
information, such as employee lists, organization charts, personnel material,
talent material, salary and bonus information, and any confidential work product
developed by Executive or at his direction during the course of Executive's
employment with the Company.
(c) Noncompetition. During the period of Executive's employment with
the Company and for two years thereafter, Executive agrees that, without the
prior written consent of the Company, Executive shall not, directly or
indirectly, serve, or enter into a relationship with, a Competing Business,
either as principal, manager, agent, consultant, officer, stockholder, partner,
investor, lender or employee or in any other capacity, or act in any manner
adversely to the interests of the Company. Nothing in this Section 9(c) shall be
construed so as to preclude Executive from investing in any publicly or
privately held company, provided Executive's beneficial ownership of any class
of such company's securities does not exceed 1% of the outstanding securities of
such class.
(d) Nonsolicitation. During the period of Executive's employment by
the Company and for two years thereafter, Executive shall not, directly or
indirectly, himself or through others, solicit, entice away, canvass, employ or
hire or cause to be solicited, enticed away, canvassed, employed or hired any
employee of the Company or any person employed by the Company during the
preceding two years (the "Protected Employees"), nor shall Executive directly or
indirectly, himself or through others, solicit, entice or induce any Protected
Employee to terminate Executive's employment by, or contractual relationship
with, the Company or authorize, approve or assist in the taking of any such
actions by any other person.
(e) Injunctive Relief. Executive and the Company agree that the
covenants in this Section 9 are reasonable under the circumstances, and further
agree that if any court of competent jurisdiction finds that any of such
covenants are not legally enforceable, such court shall excise or modify the
offending provision or provisions of such covenants to the least degree required
by law or equity and shall thereafter enforce such covenants as so excised or
modified. Executive agrees that any breach of the covenants contained in this
Section 9 would irreparably injure the Company. Accordingly, Executive agrees
that the Company may, in addition to pursuing any other remedies it may have in
law or in equity, cease making any payments otherwise required by this Agreement
and obtain an injunction against Executive from any court having jurisdiction
over the matter restraining any further violation of this Agreement by
Executive.
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(f) Executive will inform any subsequent employer of his obligations
under this Section 9 of the Agreement.
10. Disputes.
Except with respect to any disputes or controversies arising under
Section 9 of this Agreement which shall be settled exclusively in a court of
competent jurisdiction, any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
the state of the Company's headquarters, in accordance with the Rules of the
American Arbitration Association then in effect. Judgment may be entered on an
arbitrator's award relating to this Agreement in any court having jurisdiction.
11. Assignment.
Except as otherwise provided herein, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the Company and Executive
and their respective heirs, legal representatives, successors and assigns. If
the Company shall be merged into or consolidated with another entity, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the entity surviving such merger or resulting from such consolidation. The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. The provisions of this Section
11 shall continue to apply to each subsequent employer of Executive hereunder in
the event of any subsequent merger, consolidation or transfer of assets of such
subsequent employer.
12. Withholding.
The Company may, to the extent required by law, withhold applicable
federal, state and local income and other taxes from any payments due to
Executive hereunder.
13. Applicable Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida applicable to contracts made and to be
performed therein, without giving effect to the principles of choice of law
thereof.
14. Entire Agreement.
This Agreement constitutes the entire agreement between the parties
and, except as expressly provided herein, supersedes all other prior agreements
concerning subject
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matter hereof between the Company and Executive, the exception being the
Company's agreement with Executive concerning the Xxxxxxx MBA program, as set
forth in the letter attached hereto as Exhibit 1. This Agreement may be changed
only by a written agreement executed by the Company and Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
TROPICANA PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Accepted:
/s/ Xxxxxxx X. Xxxx, Xx.
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Executive
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SCHEDULE A
DEFINITIONS
As used in this Agreement, and unless the context requires a
different meaning, the following terms, when capitalized, have the meaning
indicated:
"Agreement" shall have the meaning ascribed to such term in Section
2 of this Agreement.
"Annual Target Bonus" means an amount equal to the [percentage of
Base Salary] [dollar amount] set forth in Section 4(b) hereof.
"Base Salary" means Executive's annual rate of base salary
(disregarding any reduction in such rate that constitutes Good Reason) in effect
on the Effective Date, as it may be increased from time to time.
"Board" means the Board of Directors of the Company.
"Bonus" means all amounts payable to Executive under the Company's
annual incentive plan (and any successor plans(s)) for the calendar year in
which a Termination Date occurs.
"Cause" means the following:
(1) Executive's refusal to follow written, lawful directions or
Executive's material failure to perform Executive's duties,
which refusal or failure has not been cured by Executive
within ten business days following written notice thereof from
the Company;
(2) Executive's material failure to comply with the Policies and
Procedures for Worldwide Business Conduct; or
(3) Executive's engaging in conduct which is unlawful to the
detriment of the Company or any of its affiliates.
"Code" means the Internal Revenue Code of 1986, as amended.
"Competing Business" means any of the following:
(1) any business relating to the manufacture, distribution or sale
of juice and/or juice beverage products, worldwide; or
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(2) any business which is the same as or similar to any other
business in which the Company is engaged on the date of a
termination of employment, within the same geographic area in
which the Company is engaged in such other business.
"Effective Date" shall have the meaning ascribed to such term in
Section 2 of this Agreement.
"Executive" shall have the meaning ascribed to such term in the
recitals of this Agreement.
"Good Reason" means the occurrence of any of the following:
(1) A reduction in any of Executive's Base Salary or Target Bonus,
from such salary or bonus existing immediately prior to the
Effective Date, which reduction has not been cured by the
Company within ten business days following written notice
thereof; or
(2) A relocation, during the first two years of the Term of this
Agreement, of Executive's primary place of business in excess
of 50 miles from such place's current location (but excluding
travel required by Executive's position); or
(3) A material breach of this Agreement by the Company.
"Term" means the period during which this Agreement is effective
pursuant to Section 2 of this Agreement.
"Termination Date" shall have the meaning ascribed to such term in
Section 5 of this Agreement.
"Welfare Benefits" shall have the meaning ascribed to such term in
Section 5 of this Agreement.
